Gould v. Canada (Attorney General), 2004 FCA 246

Date: 20040623

Docket: A-641-02

Citation: 2004 FCA 246

CORAM:        DESJARDINS J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                             RENNIE E. GOULD

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                          Heard at St.John's, Newfoundland and Labrador, on June 23, 2004.

                 Judgment delivered at St.John's, Newfoundland and Labrador, on June 23, 2004.

REASONS FOR JUDGMENT OF THE COURT BY:                                                   NADON J.A.

Date: 20040623

Docket: A-641-02

Citation: 2004 FCA 246

CORAM:        DESJARDINS J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                             RENNIE E. GOULD

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

[1]                This is an application for judicial review of a decision of the Pension Appeals Board (the "Board") dated October 2, 2002, which concluded that the applicant had not met his burden of demonstrating that he was suffering from a disability that was "severe" and "prolonged". Consequently, the Board dismissed the applicant's appeal from a decision of a Review Tribunal dated January 6, 2000, which confirmed the Minister's decision denying his application for a disability pension.

[2]                We are all of the view that this judicial review application should be allowed.

[3]                Firstly, it is clear that in reaching its conclusion, the Board disregarded evidence which supported the applicant's position that his disability was severe and prolonged. Specifically, the Board failed to consider the report of Dr. Sean Connor, a cardiologist, dated July 1, 2001, and those of Dr. Lorne Adams, dated February 2, 1998 and January 31, 2001. In their reports, both Dr. Connor and Dr. Adams suggest that the applicant is unable to work. We are obviously not saying that these reports are conclusive of the issue, but simply that they ought to have been dealt with by the Board.

[4]                Secondly, we are of the opinion that the Board failed to provide a meaningful analysis of the evidence. Although the Board provided a brief summary of the evidence, its analysis of this evidence is, for all intents and purposes, simply nonexistent. It consists of paragraphs 16 to 19 of its Reasons, which read as follows:

Intention of the Legislation

[16]         The intention of the legislation has been found on many occasions to preclude pensions from being granted except in cases of total disability: incapacity to work in the sense of Paragraph 42(2)(a) of the Act. The legislation is not welfare legislation.

Conclusion

[17]         We have carefully considered the decision of the Review Tribunal, and its reasons therefore. We have examined, and carefully considered, all of the medical reports which were before the Review Tribunal. As well, we have examined, and carefully considered, the additional medical, and other reports which were presented to us on behalf of the Appellant. We have carefully considered the evidence presented to us on behalf of both the Appellant and the Respondent. We have carefully listened to, and considered, the able submissions made to us by counsel for the Appellant and Respondent, which we found most useful, and for which we should like to thank them. As well, we have considered the applicable law.

[18]         Having carefully examined and considered all of the evidence before it, this Board finds that the Appellant has not discharged the burden placed on him by the Plan. He has not satisfied us, on a balance of probabilities, that on or before December 31, 1999, he was incapable regularly of pursuing any substantially gainful occupation.

[19]         The appeal by the Appellant is, in the circumstances, dismissed.

[5]                It is not sufficient, it goes without saying, for the Board to state that it considered all of the evidence put before it and also considered the submissions put forward by the parties. The Board went from a selective summary of the evidence to a conclusion that the applicant had not met his burden of proof. Unfortunately, the link between the evidence and the conclusion is missing and consequently, the decision cannot stand.

[6]                Therefore, this judicial review application will be allowed, the Board's decision will be set aside and the matter will be referred back to a differently constituted Board for a rehearing and redetermination on the basis of the record as constituted and other evidence that the parties may wish to adduce and that the new panel of the Board may consider relevant.

[7]                The applicant should have his costs.

                                                                                         "M. Nadon"

                                                                                                      J.A.

                                     FEDERAL COURT

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                      A-641-02

STYLE OF CAUSE:                                     RENNIE E. GOULD v. THE

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                St. John's, Newfoundland and Labrador

DATE OF HEARING:                                   June 23, 2004

REASONS FOR JUDGMENT

OF THE COURT:                                         [DESJARDINS, NADON, PELLETIER JJ.A.]

DELIVERED FROM THE

BENCH BY:                                                  NADON J.A.

APPEARANCES:

Ms. Averill J. Baker                                                                For the applicant

Mr. John Vaissi Nagy                                                            For the respondent

Ms. Laura Dalloo

SOLICITORS OF RECORD:

Averill Baker Law Office                                                        For the applicant

St. John's, NL

Mr. Morris Rosenberg                                                           For the respondent

Deputy Attorney General of Canada